Several lawyers for the Bloody Sunday families believe that the Saville tribunal has appeared to show favoured treatment to the evidence of former British prime minister Sir Edward Heath.
One legal source has accused tribunal chairman Lord Saville of Newdigate of giving the impression of trying to shield Heath's government from blame for the killings.
"Any fair reading of the transcript leads to the inescapable inference that the tribunal is anxious to shield Heath and the establishment from any possibility of culpability. The impression was clearly given that they were resistant to any probing that might raise the question of Heath's responsibility, whether by neglect or otherwise, for Bloody Sunday," the source said.
The accusation came following a series of clashes between Sir Edward and Michael Lavery QC – representing a majority of the Bloody Sunday families and the wounded – and a number of interventions by Lord Saville in the clashes. It is known that the opinions of the source who spoke at the weekend are shared by a number of lawyers representing the families and the wounded.
On Wednesday, Sir Edward completed five afternoon sessions of evidence spread over two weeks. The former premier will return to the witness stand at Methodist Central Hall, Westminster, this afternoon, when Mr Lavery is due to complete his cross-examination. Sir Edward will then be cross-examined further by the families' other lawyers.
In the course of his evidence, Sir Edward has repeatedly refused to answer questions from Mr Lavery of which he disapproved, dismissing
them variously as "silly", "imaginary", "irrelevant", "disgraceful" etc. On at least 10 occasions he has declined to answer questions which he said he regarded as hypothetical. A reading of the transcript suggests that the number of questions the former Tory leader has refused to answer so far exceeds 50. On no occasion has Lord Saville instructed him to answer a question.
A number of Lord Saville's interventions have appeared to support Sir Edward's objections: "These questions are far too general"; "I am not following the relevance of this question, Mr. Lavery"; "I do not understand the suggestion you are making" etc.
On at least half a dozen occasions, Lord Saville has told Mr Lavery to make his questions more focused. A number of lawyers have interpreted the chairman's regular admonishments of Mr Lavery as patronising, if not insulting.
Last Monday Mr Lavery pressed Sir Edward on what his attitude would have been had he known at the time of a suggestion by the commander of land forces in Northern Ireland, General Robert Ford, that the minimum force necessary to restore the rule of law in Derry might involve shooting ringleaders of the "Bogside young hooligans".
Lord Saville intervened to question Mr Lavery as to the point of the question. The QC explained that he wanted to explore "what signals (Sir Edward's) attitude was sending to the people who were actually responsible for day-to-day activities in Northern Ireland". Lord Saville responded by asking Mr Lavery what suggestion exactly he was putting to Sir Edward.
"With respect, sir, I do not have to make any suggestion," Mr Lavery said.
"In that case, Mr Lavery, you are not helping us and I will have to ask you to sit down," Lord Saville said. In the event, after further exchanges, Mr Lavery was allowed to press on.
The source commented: "That senior counsel of Michael Lavery QC's standing should be threatened with exclusion from the hearing – not for what he was saying but because he was resisting pressure for formulate his questions in the way that the tribunal wanted them to be put – is quite without precedent.
"It is generally agreed between all of the lawyers for the families that whatever the substance of the exchanges between Mr Lavery and the tribunal, on occasions they were grossly discourteous to him and, by implication, to his clients."
The source contrasted Sir Edward's treatment with the experience of civilian witnesses who gave evidence at Derry Guildhall.
"In normal circumstances a witness's refusal to answer questions – whether hypothetical or not – normally does his case great damage and compels the decision-maker listening to him to believe that he has something to hide," the source said.
"Hypothetical questions are no new development in the inquiry. One can remember numerous occasions in which counsel for the soldiers would ask civilians if they knew anyone who was a member of the IRA in Derry. If a witness would say no then the army barrister would inevitably counter with 'Well if you did know would you tell this inquiry?'
"On not one occasion did Lord Saville or his colleagues ever protect any of the civilian witnesses from this type of hypothetical questioning."
The source described the protection given to Sir Edward by the tribunal as "quite extraordinary".
On a number of occasions it seemed to observers that the tribunal was, in effect, suggesting answers which Sir Edward might give to questions which he had not answered or appeared reluctant to answer.
The passage of cross-examination which att-racted most puzzlement and comment around Central Hall came on Wednesday, as Mr Lavery asked Sir Edward about the circumstances in which the then lord chief justice, Lord Widgery, had been invited to conduct the first Bloody Sunday inquiry. Mr Lavery showed the former prime minister the minute of a meeting at Downing Street on the evening after Bloody Sunday, in which Mr Heath is recorded cautioning Lord Widgery to remember that in Northern Ireland "we" were fighting a propaganda war as well as a military war.
Mr Lavery wanted to know why it had been necessary for Mr Heath to meet Lord Widgery personally. There had been no "procedural" reason, he suggested.
Sir Edward explained: "When major appointments like this are made, it is the prime minister himself who does it." If Lord Widgery had wanted to say no, "he would say it to me, he would not expect to say it to some clerk", Sir Edward added.
Mr Lavery pointed out that the minute recorded Mr Heath at the outset of the meeting "expressing the government's gratitude to the lord chief justice" for having agreed to conduct the inquiry. This suggested that he had already accepted the appointment – what was it, then, that the two men had to meet to discuss?
Lord Saville intervened: "I did not myself get the impression from what Sir Edward said and I think we do actually know – do we not? – from contemporary material that the lord chancellor (Lord Hailsham) approached the lord chief justice who said – I have this in my mind from somewhere, Mr Lavery – that if the job was to be done, he was the one to do it.
"I think there were suggestions that he might nominate another judge or something like that. I think it is common ground – and it would not be surprising if Sir Edward had forgotten – by the time this meeting took place, the lord chief justice had indicated, probably to Lord Hailsham, that he was the one who was going to do the job. Is there really anything significant in this?"
On Tuesday, Mr Lavery suggested to Sir Edward that the government had had an interest in the outcome of the 1972 inquiry, in that army morale might be affected by the outcome, and that it had at first considered commissioning a private rather than public inquiry under the 1921 Tribunals Act. Sir Edward replied: "Your question is irrelevant."
"If it is irrelevant, I will not be allowed to ask it," Mr Lavery responded.
"Perhaps you would indulge me and answer it whether you think it irrelevant or not."
Lord Saville intervened: "Sir Edward, I think what is being suggested is that at least one of the factors that was being considered was the question of the effect on the morale of the troops...I think your answer is, well, your view throughout, was that despite any countervailing factors, the way to go was to have a 1921 public inquiry."
Sir Edward: "Quite right."
Lord Saville: "Do I understand your evidence correctly?"
Sir Edward: "Quite right."
Said one lawyer in the foyer afterwards: "It may well be that that's exactly what Heath was going to say. But he hadn't said it."
Many of the questions from Mr Lavery which Sir Edward refused to answer and of which Lord Saville apparently disapproved had to do with the level at which responsibility for Bloody Sunday is to be pitched. Lord Saville has seemed to regard questions bearing on the mind-set of ministers, rather than on events as they unfolded on the ground, as not sufficiently focused on the the proper object of the inquiry. The families see things differently.
The lawyers for the families will argue when they come to sum up, probably late this year, that the evidence shows that, while ministers in Mr Heath's cabinet and their close advisors may not have directly ordered Bloody Sunday or been aware in advance that civilians would likely be killed, they did, through their attitudes and decisions, provide the political and ideological climate in which others may have believed that killing civilians in the Bogside would not attract government disapproval.
This has been the axis of the clash between Sir Edward and the senior barrister in the team representing the majority of victims. The interventions of Lord Saville, the source who spoke at the weekend suggests, may indicate that the tribunal has already taken this view on the matter.
